Zeitlow on the Tea Party and "Popular Originalism"

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus highlights the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both fields study legal history to illuminate constitutional meaning, but originalists and popular constitutionalists draw diverging lessons from that history. Originalists look to history to determine fixed original meaning, which they hold to be binding on contemporary interpreters regardless of subsequent historical or political developments. Popular constitutionalists study how constitutional interpretation has been influenced by historical developments, and explore the use of constitutional theory to bolster constitutional arguments. This essay explores the convergence and divergence between originalism and popular constitutionalism, and questions whether popular originalism is feasible given originalists’ fidelity to the original text. The essay concludes by asking what popular originalism can teach about us constitutional interpretation and democracy. While modern originalism began as a critique of judicial over-reaching into the political process, it has evolved into a justification for courts to overturn democratic measures. Paradoxically, then, the popular originalism of the Tea Party may achieve its only success, not through the democratic process, but in the federal courts.

Originalism also looks to the words of the ratifiers who are distinct from the framers, without giving preference to one group over the other, in determining the public meaning/understanding of the text at the time(s) of framing/ratifying. And originalism indeed looks at history as an aid to such determination, as demonstrated on both sides of the Heller Second Amendment 5-4 decision; but this is not to say that originalists do so with the same quality as historians.